Excerpt:execution - sale, stay of--order staying sale, selting aside of, effect of--sale during existence of order, validity of. - - if this order had never been made it is perfectly clear that the sale was a perfectly valid sale and could not be set aside on any ground of irregularity......ground of irregularity. this being so, we think the appeal must be dismissed with costs. both sets of respondents were vitally interested in the appeal and there must be two sets of costs. costs in this court will include fees on the higher scale.

Judgment:

1. In this case an order had been obtained from the High Court ex parte, staying an execution sale which was to take place on the 10th of April 1917 for a period of fourteen days. The order was obtained from this Court on the 5th of April 1917. The sale in fact took place on the 10th of April, the day fixed for the sale. It was conducted by an auctioneer, who admittedly was justified in proceeding with the sale so far as he was concerned. He had got no proper intimation that this Court had postponed the sale. Even the Judge himself, under whose order the sale was held, did not know of the order of this Court until after the time advertised for the sale. When the copy of the order of this' Court was filed in the Court of the Subordinate Judge the sale was actually taking place. The order which was obtained from this Court on the 5th of April was subsequently set aside by the same learned Judge who made the order, on the ground that the order had been obtained from him by fraud, misrepresentation and suppression of material facts. It seems to us, therefore, that the only question we have to decide is whether or not the sale was absolutely void because it was made while the order of this Court was still in existence. In our opinion the sale was not void. Once the order obtained in this Court was set aside as having been obtained by fraud, it was as if the order had never been made. If this order had never been made it is perfectly clear that the sale was a perfectly valid sale and could not be set aside on any ground of irregularity. This being so, we think the appeal must be dismissed with costs. Both sets of respondents were vitally interested in the appeal and there must be two sets of costs. Costs in this Court will include fees on the higher scale.